PLACIDE v. GONZALES

June 17, 2005.

ANTOINE PLACIDE Petitioner,
v.
ALBERTO GONZALES, et al., Respondents.

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

ORDER

On June 2, 2005, the petitioner filed a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 ("Pet. Writ") and a Motion for
Emergency Stay of Removal and Immediate Release. The Government
has now filed a Motion to Dismiss Petitioner's Petition for a
Writ of Habeas Corpus and Motion for Emergency Stay of Removal
and Immediate Release ("Resp. Mot."). For the reasons set forth
below, this Court must deny the petitioner's motion for emergency
stay, and grant the respondents' dismissal motion.

I. Background

The plaintiff was born in Haiti in 1974, and entered the United
States on June 6, 1986. Pet. Writ. at 2. After entering the
United States at age nine, the petitioner resided with his father
and step-mother, both whom were United States citizens.*fn1
Id. The petitioner acknowledges that he has been convicted in
the United States of three separate criminal offenses, namely,
possession of marijuana with the intent to distribute,
unauthorized use of a motor vehicle, and possession of marijuana. Id. at 3-4. Following each conviction,
the petitioner was contacted by the Immigration and
Naturalization Service ("INS"), who, according to the petitioner,
concluded that he was a United States citizen. Id. at 4. In
fact, on May 9, 2002, the INS detained the petitioner, but later
released him after determining that he was a United States
citizen. Id. at 5. On January 29, 2004, the petitioner was
arrested for allegedly violating his parole and detained until
September 29, 2004. Id. Upon his release, the INS took custody
of and detained the petitioner. Id. He is currently detained at
the Plaquemine Parish Detention Center in Brathwaite, Louisiana,
and is scheduled to be removed from the United States pursuant to
a final order of removal issued by the Department of Homeland
Security in May 2003. Id. at 5, 9.

In his Writ, the petitioner asserts two legal arguments to
support his contention that his detention is illegal. First, the
petitioner posits that he is a United States citizen, and has
been a citizen since the age of nine. Id. at 9. Thus, according
to the petitioner, the removal order is a violation of the
Fourteenth Amendment. Id. at 10. In addition, the petitioner
argues in the alternative that, even assuming he is not a United
States citizen, his detention violates the recent Supreme Court
decision in Zadvydas v. Davis, 533 U.S. 678, 687 (2001). In
response, the respondents contend that this Court lacks subject
matter jurisdiction to review the constitutionality of a removal
order issued by the Department of Homeland Security in light of
the recently enacted REAL ID Act of 2005, Pub.L. No. 109-13,
Div. B, § 106(a), 119 Stat. 231 (2005). Resp. Mot. at 1-2. In
addition, the respondents note that even if this Court were to
conclude that it has subject matter jurisdiction, this case would
have to be transferred to the Eastern District of Louisiana
because it is without personal jurisdiction over the petitioner's
custodian. II. Legal Analysis

The petitioner first argues that the removal order issued by
the Department of Homeland Security is illegal because he is a
United States citizen and therefore immigration laws and orders
do not apply to him. Pet. Writ at 9-10. For the reasons that
follow, this Court simply lacks subject matter jurisdiction to
grant the petitioner's requested relief.

Judicial review of a removal order is governed by
8 U.S.C. § 1252 (2004), as amended by the REAL ID Act. This statutory
provision provides, in part, that a petition for review of a
removal order "shall be filed with the court of appeals for the
judicial circuit in which the immigration judge completed the
proceedings." 8 U.S.C. § 1252(b)(2); see also
8 U.S.C. § 1252(a)(5) ("[A] petition for review filed with an appropriate
court of appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of this chapter").
Thus, this provision makes clear that this Court does not have
jurisdiction to entertain the petitioner's challenge to his
removal order. In fact, this statutory provision, as amended by
the REAL ID Act, strips district courts of habeas jurisdiction to
review such removal orders. 8 U.S.C. § 1252(b)(9) ("Except as
otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28, or
any other habeas corpus provision, by section 1361 or 1651 of
such title, or by any other provision of law (statutory or
nonstatutory), to review such an order [of removal] or such
questions of law or fact."). Moreover, this statutory provision
clearly provides for the review of "nationality claims" by the
appropriate United States Circuit Court of Appeal.
8 U.S.C. § 1251(b)(5).

Here, the petitioner's Writ challenges a removal order based
upon a claim of nationality. For the foregoing reasons, it is clear that this Court is
precluded from reviewing such a claim. According to the
petitioner, the immigration judge who completed the proceedings
against him was in Atlanta, Georgia. Thus, the United States
Court of Appeals for the Eleventh Circuit is the proper court in
which the petitioner must pursue this claim.*fn2

The petitioner argues in the alternative that even if the final
order of removal is proper, his physical detention is illegal
under Zadvydas, 533 U.S. at 687. Assuming the petitioner's
argument is correct, and he is being illegally detained, it is
well-settled that the proper respondent in a habeas action
challenging present physical custody is the warden of the
facility in which the petitioner is being detained. Rumsfeld v.
Padilla, 124 S.Ct. 2711, 2713 (2004). Accordingly, because the
petitioner is detained in Louisiana, any such claim must be
brought against the petitioner's immediate custodian, who is
located within the boundaries of the Eastern District of
Louisiana.

Accordingly, it is hereby this 17th day of June, 2005,

ORDERED that the petitioner's Motion for Emergency Stay of
Removal and Immediate Release is DENIED. It is further

ORDERED that the respondents' Motion to Dismiss Petitioner's
Petition for a Writ of Habeas Corpus and Motion for Emergency
Stay of Removal and Immediate Release is GRANTED. It is further

ORDERED that this case is ...

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